Fong Chong Chuen v. The Boys' and Girls' Clubs Association of Hong Kong

CAMP 75 /2020

[2021] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2020

(ON AN INTENDED APPEAL FROM DCPI NO 548 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the defendant’s renewed application for leave to appeal to the Court of Appeal against the judgment of Deputy District Judge K C Hui dated 15 October 2019 (“the Judgment”) and for stay of execution of the Judgment in the sum of $440,000 until the final disposal of the leave application or appeal if leave be granted.

2.The judge refused leave to appeal in a decision handed down on 16 June 2020 (“the Leave Decision”).

3.The present summons for the renewed application to the Court of Appeal was issued on 30 June 2020.

4.Having considered the papers and the submissions lodged by both parties, we exercise our power to determine the summons on paper without an oral hearing, pursuant to Order 59 rule 2A(5) of the Rules of the High Court.

Background

5.The plaintiff sued the defendant in negligence for damages for personal injuries he sustained whilst participating in an orienteering activity organised by the defendant in Sha Lo Tung, Tai Po on 20 December 2014.  He was aged 17 at the time.  The defendant is a non‑profit organization which provides social services and activities to the public, with a focus on children and young people.

6.During the activity, the plaintiff fell from a bridge made of concrete slabs when one of the two slabs suddenly broke after he and two members of his team had been standing on the bridge for about 30 seconds.  He suffered injuries as a result of the fall.  The detailed factual background is set out in the Judgment at §§3 to 7 and will not be repeated.

7.The parties settled the issue of quantum and the judge dealt with liability in a trial which lasted three days.  The defendant contested liability on the bases that: (1) the collapse of one of the two concrete slabs of the bridge was not a foreseeable risk and the accident was not reasonably foreseeable; (2) the defect of the bridge was a latent defect and not discoverable by reasonable inspection; and (3) the defendant had taken all reasonable care in the circumstances to ensure the plaintiff’s safety in the activity.

8.All the above contentions of the defendant failed before the judge.  The judge found that the bridge collapsed because one of the concrete slabs could not cope with the combined weight of the three young men^[1]. Having considered the activity as designed and directed by the defendant, the likely usage by the participants of the area of the bridge and the bridge, the judge found that the defendant should reasonably have foreseen that at least three participants of the activity would use and be on the bridge at the same time^[2]. He found that the defendant’s scope of duty of care included the duty to test and/or to ascertain whether the bridge could hold at least three participants before the commencement of the activity^[3]. Having found that the defendant had failed to do so, he concluded that the plaintiff is successful in establishing liability in negligence against the defendant.

9.The facts of this case are really very simple.  The scope of the duty of care as found by the judge is clearly fact-sensitive, as the judge was at pains to emphasise in the Judgment.

10.In the leave application before the judge, the defendant advanced nine grounds of appeal set out in 13 paragraphs.  In the renewed leave application before the Court of Appeal, probably due to the change of counsel, new draft grounds of appeal are placed before this court.  The grounds have been revised and grouped under four headings, running into 13 paragraphs with sub-paragraphs set out in ten pages.

The proper approach in an appeal of this nature

11.The judge was deciding a question of mixed fact and law in that he was applying the standard laid down by the courts to the facts of this case whether the defendant is liable in negligence.  In so doing, he had to weigh up a number of factors in deciding what should be the scope of the duty of care owed to the plaintiff and whether the standard of care was met.  The nature of his decision is such that there is room for a legitimate difference of judicial opinion as to what the answer should be, where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right.

12.It is well established that when the appeal court is asked to review such a decision on appeal, it should treat the first instance decision with the utmost respect and refrain from interference unless it is satisfied that the primary judge had proceeded upon some erroneous principle or was plainly and obviously wrong^[4].

13.The question for consideration in this application is whether there are reasonable prospects of success of establishing that the judge had proceeded upon some erroneous principle or was plainly and obviously wrong.

The draft grounds of appeal

14.The way the defendant presented its case to this court in renewing its application for leave to appeal leaves much to be desired.  The draft grounds of appeal are prolix and repetitive.  Quite a number of contentions are not mentioned in the submission of its counsel Mr Raymond Leung, SC^[5]. And some contentions in his submission do not feature in the draft grounds of appeal.  We do not propose to deal with each and every contention in these two documents submitted by the defendant, but only the major contentions.

15.The first broad ground of appeal raises a pleading point.  The complaint is that the plaintiff failed to plead the outward appearance of the bridge, which, as described by his counsel Mr Patrick Lim before the judge, “appeared to consist of an old piece of concrete and suffered weathering and material fatigue whereby the weight-bearing strength was compromised”^[6]. It was submitted by Mr Leung that this was an “unpleaded case of defects of the Bridge discernible from its ‘outward appearance’ ”, and that the judge erred in allowing the plaintiff to advance this unpleaded case only alleged at the trial such that the defendant was prejudiced in the preparation of its case.

16.The plaintiff’s case, as pleaded in §§5 to 7 of the statement of claim, is that the bridge collapsed after he and two teammates stood on it for about 30 seconds and the particulars of negligence set out the alleged breaches of duty in a general way.  No further elaboration is necessary as the facts of the accident are very simple.  Photographs of the bridge with the broken slabs were placed before the judge.  The plaintiff’s counsel was merely describing to the court what he could deduce from the photographs and the inference he was inviting the judge to draw.  The outward appearance of the bridge is merely evidence of negligence.

17.The submission that the defendant was prejudiced in the preparation of its case concerning the outward appearance of the bridge has no foundation in reality.  The defence in §5(e)(iii) pleaded the dimensions and appearance of the bridge, that it was “made of 2 parallel and separate concrete slabs closely located to each other” and that on four occasions between August and December 2014, members of the technical committee established by the defendant for the activity in question had checked the bridge and walked on it and found it safe without risk of collapsing.  It was further pleaded in §5(j) that any defect of the bridge was “latent and not discoverable by reasonable inspection”.  The appearance and structure of the bridge are part of the defendant’s pleaded case and it should have made such preparation as it saw fit in advancing its case at the trial. 

18.The contentions raised in §2 of the draft grounds of appeal (which have not been referred to in Mr Leung’s submission) may be dealt with shortly. §2(1) contended that the bridge was not made of two concrete slabs but was “wholly or mainly made out of stone”.  This is contrary to the defendant’s own case pleaded in§5(e)(iii) of the defence.  §2(2) contended that the plaintiff and his teammates stood or walked on only one of the slabs and this constituted an “unnatural user of the Bridge and was not foreseeable” as they should have walked astride on the two slabs instead of on one.  If the “unnatural user” should be regarded as contributory negligence, this has not been pleaded in the defence.  It is unnecessary for the judge to make any finding about this contention.  Had it been necessary to do so, the judge would have been entitled to accept the evidence from the plaintiff who had disagreed with the suggestion it was unnatural to walk on one slab instead of walking astride^[7]. It is sheer common sense.  The criticism of Mr Leung is unfounded.

19.In the written submission of Mr Leung, he contended the plaintiff also failed to plead that the defendant failed to (1) test walk the bridge with three persons on it at the same time, and (2) ask the Agricultural, Fisheries and Conservation Department for the load capacity of the bridge, as found by the judge to be preventive measures the defendant could have taken^[8]. These complaints did not feature in the draft grounds of appeal as matters that should have been pleaded.  Clearly, they are evidence of negligence and no pleading is required.

20.The pleading point is utterly devoid of merits.

21.A central contention in respect of the second and third grounds of appeal is that the judge failed to differentiate the “immediate cause” (which is the collapse of the slab due to the combined weight of three young men) from “the cause on which the issue of liability turns”, described by Mr Leung as the “culpable cause”.  Mr Leung argued that the “immediate cause” in this instance is “neutral” and hence could not provide a basis for the judge to find foreseeability, knowledge of the risk and culpability of the defendant (draft ground 2).  Because of this error, and in the absence of evidence to prove the “culpable cause”, the judge had reversed the burden of proof in holding that it was the defendant who should adduce necessary evidence (including expert evidence) to establish the “culpable cause” (draft ground 3).

22.Mr Leung’s arguments are premised on a misreading of the statements of Bokhary PJ in Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 at §3, which are as follows:

“This mode of inferential reasoning applies only to accidents of unknown cause. But it matters not that the immediate cause of an accident (eg brake failure or a burst tyre) is known. As long as the cause on which the issue of liability actually turns (eg why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause.”

23.The “mode of inferential reasoning” referred to in the beginning of this extract is in the context of a discussion on res ipsa loquitur, as the extract is followed immediately by this sentence: “The res ipsa loquitur mode of inferential reasoning comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property.”

24.As acknowledged by Mr Leung, res ipsa loquitur has no application to the present situation.  It is wrong to read the above statements of Bokhary PJ as applying generally to all kinds of situations in claims for negligence.

25.We agree with Mr Lim it is not necessary for the judge to search for the “culpable cause”, once it is held that the bridge collapsed because it could not hold the combined weight of three persons.  By designing a route in the activity which included the bridge and given the number of participants, it was within the reasonable contemplation of the defendant that three or more persons would be on the bridge at the same time.  The defendant owed a duty to the plaintiff to ensure that the bridge was safe.  The simple fact is that the bridge collapsed when the plaintiff and two teammates stood on it for 30 seconds.

26.The judge has plainly not reversed the burden of proof in this instance.  He is correct in holding that if the defendant should wish to pursue a case of latent defect of the bridge not discoverable by reasonable inspection, it is for the defendant to lay the evidential basis for this.  It is plain common sense for the judge to hold as follows in §46 of the Judgment:

“The Court is to determine what, on a balance of probability, was the cause of the collapse of the Bridge. Given that 3 participants were on the Bridge when it collapsed, and there being no evidence that some other 3 (or more) persons have stood on the Bridge without incident prior to the Accident, I have no difficulty in concluding on the available evidence that it is more likely than not that the Bridge collapsed because it could not hold the combined weight of [the plaintiff and two teammates]. If [the defendant] wants to contend for another cause of the collapse, it is for it to adduce the necessary evidence (including expert evidence) at trial.”

27.The remaining contentions canvassed in §§3, 4, 7 of the draft grounds of appeal and draft ground 4 in the draft placed before us seek to attack the judge’s weighing up of a number of factors in deciding what should be the scope of the duty of care owed to the plaintiff and whether there was breach of the duty.  Applying the approach of the margin of appreciation well established by the authorities, we are of the view that the judge has reached a conclusion he is entitled to reach which the appeal court should not interfere.  We are not persuaded that the judge has made any error in principle or is plainly and obviously wrong.

28.For all the above reasons, we refuse to give leave to appeal. The application for stay of execution of the Judgment does not arise.

29.As this application is entirely without merits, we make a further order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination of this court to be reconsidered at an oral hearing inter partes, as this application is wholly without merits.

30.There is no reason to depart from the general rule that costs should follow the event.  We make an order nisi that the defendant is to pay the plaintiff’s costs of this summons.  Having considered the plaintiff’s statement of costs for summary assessment, we assess the reasonable costs of the plaintiff at $120,000.  We further order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

31.The costs order and summary assessment are in the nature of orders nisi and will be made absolute if no application for variation is made by any party within 14 days of the handing down of this judgment.

Mr Patrick D Lim, instructed by Li & Lai, for the Plaintiff (Respondent)

Mr Raymond Leung SC and Mr Eric Tsoi, instructed by Clyde & Co, for the Defendant (Applicant)